Fitzgerald and Libby: Connecting the Dots

Sandy Berger goes unindicted and will soon have his security clearance restored while Scooter Libby stands to get 30 years in jail.

My theory for the Javert-like zeal of prosecutor Fitzgerald is his desire to fulfill the left’s need to “prove” a neocon (Jewish) conspiracy to “rush” us into war with Iraq, resulting ultimately, let’s say, in his becoming attorney general in the next Clinton administration. But the Wall Street Journal has another motivation, which while perfectly plausible, does not refute my theory:

As it happens, Messrs. Fitzgerald and Libby had crossed legal paths before. Before he joined the Bush Administration, Mr. Libby had, for a number of years in the 1980s and 1990s, been a lawyer for Marc Rich. Mr. Rich is the oil trader and financier who fled to Switzerland in 1983, just ahead of his indictment for tax-evasion by the U.S. Attorney for the Southern District of New York. Bill Clinton pardoned Mr. Rich in 2001, and so the feds never did get their man. The pardon so infuriated Justice lawyers who had worked on the case that the Southern District promptly launched an investigation into whether the pardon had been “proper.” One former prosecutor we spoke to described the Rich case as “the single most rancorous case in the history of the Southern District.”

Two of the prosecutors who worked on the Rich case over the years were none other than Mr. Fitzgerald and James Comey, who while Deputy Attorney General appointed Mr. Fitzgerald to investigate the Plame leak. Mr. Fitzgerald worked in the Southern District for five years starting in 1988, at the same time that Mr. Libby was developing a legal theory of Mr. Rich’s innocence in a bid to get the charges dropped. The prosecutors never did accept the argument, but Leonard Garment, who brought Mr. Libby onto the case in 1985, says that he believes Mr. Libby’s legal work helped set the stage for Mr. Rich’s eventual pardon.

This was all long ago, it’s true. But Mr. Libby and Mr. Comey tangled more recently as well. In 2004, as Mr. Fitzgerald was gearing up his investigation, Mr. Libby was the Administration’s point man in trying to get Justice to sign off on the NSA wiretapping program. In early 2004, Mr. Comey was acting Attorney General while John Ashcroft recovered from gall bladder surgery, and Mr. Comey reportedly refused to give the NSA program the greenlight, prompting the White House to seek out Mr. Ashcroft in the hospital in a bid to circumvent Mr. Comey.

Motive is a difficult thing to gauge. We don’t know whether this long personal history played any role either in Mr. Fitzgerald’s single-minded pursuit of Mr. Libby, or in Mr. Comey’s decision to grant the prosecutor plenary power even though the central mystery of the case had already been resolved. But connecting the dots linking the three men at the heart of this case seems worth doing given the puzzling nature of this prosecution.

The Journal also touches on another reason for Fitzgerald’s zeal, namely that any prosecutor can get a Washington D.C. jury of Democrats to convict a ham sandwich if the sandwich is Republican:

Mr. Fitzgerald’s main advantage may be a Washington, D.C., jury pool inclined to dislike anyone associated with the Bush Administration.

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